Consumer Fraud

Judge Allows Virginia Commonwealth’s Trinity Guardrail Lawsuit To Proceed

guard rail KCPQ TV image 435x244 Judge Allows Virginia Commonwealth’s Trinity Guardrail Lawsuit To ProceedA Virginia judge rejected a request by Texas guardrail manufacturer Trinity Industries to toss a state lawsuit against it, alleging the company committed fraud and endangered the lives of motorists when it secretly modified its ET-Plus guardrail system.

The complaint, filed by Virginia Attorney General Mark Herring last December, echoes the concerns of a whistleblower lawsuit filed by Joshua Harman against Trinity Industries. Mr. Harman alleged the company altered the design of its ET-Plus guardrail model after the Federal Highway Administration (FHA) approved it.

That change, carried out a decade ago, Mr. Harman asserted, made the end terminals shorter and prone to malfunction when struck in certain ways by a wayward vehicle. Since then, unbeknownst to federal authorities, the defective guardrails have gone up alongside highways and roads in every state.

In his lawsuit, Mr. Harman pointed to examples of the guardrail malfunction, showing how they could impale vehicles and their occupants rather than mitigating or preventing a crash. A Texas federal jury heard the case and sided with Mr. Harman. The judge overseeing the case ordered Trinity to pay $663 million in damages and penalties for violating the False Claims Act with its defective guardrails.

Virginia became the first state to take legal action against Trinity Industries. Attorney General Herring has indicated that if the guardrails are proven to be dangerous, Trinity Industries should foot the bill for their removal and replacement throughout the Commonwealth.

Trinity has sought to have the case dismissed, but on Monday a Richmond Circuit Court judge rejected the guardrail maker’s motion, allowing the case to proceed. A trial date has not been set.

Meanwhile, Virginia’s Transportation Department will put the ET-Plus guardrails through a series of new tests starting in mid-September. Commonwealth regulators hope that the six new tests, which will be different from the tests conducted in Texas after the whistleblower trial, will help explain why several people throughout the country have been killed or maimed in collisions with the ET-Plus guardrails.

“It’s still early in the process but we’re pleased this case is moving forward. It’s important that we find out exactly what’s going on with this equipment, and if fraud was perpetrated and replacement is necessary, it should be the company, not the Commonwealth, that pays,” Attorney General Herring said in a statement.

In addition to the federal whistleblower case, which Trinity plans to appeal, and the Virginia case, Trinity also faces a mounting number of personal-injury and wrongful-death lawsuits connected to the guardrails.


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